11 January 2024
Summary: From 12 December 2023, the Australian Human Rights Commission (AHRC) enforces new obligations under the Sex Discrimination Act 1984 to eliminate sexual harassment and sex-based discrimination in the workplace. This includes a positive duty for organisations to prevent such behaviours, extending to all employees, agents, and even third parties. The AHRC provides resources, including a Quick Guide, outlining Standards and Guiding Principles for compliance. Their enforcement approach prioritises voluntary cooperation, with stronger measures like compliance notices if necessary. For more information, AHEIA’s legal or workplace relations staff are available for consultation.
From 12 December 2023, the Australian Human Rights Commission (AHRC) has new powers to investigate and enforce compliance with the positive duty under the Sex Discrimination Act 1984 (Cth) (SDA) to eliminate sexual harassment and sex-based discrimination in the workplace.
The introduction of the positive duty was a key recommendation of the Respect@Work Report, published in 2020. The SDA was amended in 2022 to include a positive duty on organisations and businesses to eliminate, as far as possible, the following unlawful behaviour from occurring:
The duty extends beyond employers, to include their employees and agents. The duty is also owed to third parties including customers and clients.
During 2023, the AHRC published a range of resources to assist organisations and businesses to understand the positive duty and what is required to meet the new obligations, including A Quick Guide for Complying with the Positive Duty (Quick Guide).
The AHRC expects all relevant organisations and businesses to have measures in place to address seven Standards, which are:
The Quick Guide provides extensive information on how to comply with the Standards, as well as information on four Guiding Principles that should underpin their implementation, being:
The positive duty requires organisations and businesses to take steps that are ‘’reasonable and proportionate’’ to eliminate the unlawful conduct and implement the Standards. What is considered "reasonable and proportionate’’ will vary according to the size, nature and resources of the undertaking, the practicability and cost of the measures, and any other relevant matter.
The AHRC has published a Compliance and Enforcement Policy which sets out its powers, and approach. The AHRC may begin an inquiry if it ‘’reasonably suspects’’ that the positive duty is not being complied with. If the AHRC identifies any areas of non-compliance, it may first offer to work with the business or organisation on a voluntary basis (where appropriate) to support them to meet their legal obligations. If this is not successful, the AHRC has the power to:
If you would like further information, please contact a member of AHEIA’s legal or workplace relations staff.